Summary: Remarks, analysis, and developments as told mostly by FFII and its affiliates in Europe (who also care deeply about what happened in New Zealand this week)

As indicated earlier this month, the European UPLS seemingly collapsed [1, 2], taking down with it the possibility of software patents expansion in Europe -- for now. According to this long post, the zombie is not dead yet.

Then, in the early morning hours of the very last day of the summit, after endless hours of toughest negotiations, a bunch of bleary-eyed Heads of State, deprieved of sleep, will somehow find the final compromise on the EU patent reform project.

Let's hope not.

Benjamin Henrion, the president of the FFII, remarked on it by saying that it shows the "Financial crisis of Spain as a bargaining chip for getting rid of Spanish resistance in EU patent" and Florian Müller declined to comment about it on the record (it's kept private at his request). He did, however, make public information he has been gathering for a while by contacting MPEG-LA and other parties like Google.

One might assume that MPEG LA's obvious desire to maximize its royalty income would practically guarantee that all significant companies infringing its patents would be pursued. But the worldwide market is huge and if you have a country that's only medium-sized, then MPEG LA may decide for efficiency reasons to collect royalties only from the market leader. That one would face a risk of litigation if refusing to pay, but if that licensee's competitors don't pay because MPEG LA doesn't go after them for the time being, then that's an awkward situation for the licensee.

As a reminder, MPEG-LA is an NPE (patent troll) headed by a patent troll. We wrote about this subject in posts such as:

• Canonical Needs to Tell Ubuntu Users How Much It Paid MPEG-LA for Patent 'Protection'
• Microsoft and MPEG-LA Called “Patent Trolls”, Antitrust Complaint Filed
• Patent Troll (MPEG-LA) May Own Your Personal/Family Videos
• Alexandre Oliva Explains Why the Patent Troll Larry Horn (MPEG Cartel) is Bluffing
• “We're in the Era of Digital Video, and It's a Mess,” --Steve Jobs, MPEG-LA Proponent/Lobbyist
• Simon Phipps: “MPEG-LA is a Parasite Using Standards Bodies as Its Host, Whether They Want it or Not.” (and a Rant About Banshee/Mono)

"If you saw my posting of yesterday on MPEG LA's licensing terms," wrote Florian Müller to us, "I guess it is an area where we may not be able to agree. We can't agree on the DPL for now (like the DPL, although I really think you should give it a fair chance and look at it when it's done because it could really pave the way toward abolition over the course of several years. That's normal. But concerning codecs, PJ grossly misrepresents the facts by claiming I prefer MPEG's stuff to WebM. I pointed out different aspects of them in different blog postings without ever saying I advocate one or the other. I left no doubt about my preference for a patent-free format but I have a "show me, I'm from Missouri" attitude about that one and indemnification would change the situation in a very positive way for me as I wrote on my blog. I don't say MPEG LA isn't a problem, but looking at what they charge vs. the business that licensees do it's clearly a small problem in the field of patent licensing. Those who don't offer licenses at all or only on unreasonable terms are far more problematic. Doing away with software patents would be the right thing to do and it would determine that there's no cost for any codec. In the meantime I for my part do make a distinction between somewhat acceptable licensing terms and anticompetitive practices."

Müller also pointed out that "the IDG News story on NEON's impending EU antitrust complaint against IBM shows the usual patent holder rhetoric of "copycat" and investment in innovation. Unlike MPEG LA, that's a patent holder who simply wants to shut out competition and nothing else." We wrote about NEON in [1, 2].

Müller's interests do not intersect with those of GNU/Linux, just as an important reminder. Regarding Canonical joining the Open Invention Network (OIN), Dana Blankenhorn shows Groklaw's take on Müller but also Müller's take on OIN [1, 2]. To quote an insightful portion:

The Founding Members direct policy, licensees can agree to put down their legal briefs, while Associate Members pay an unspecified fee and will exist somewhere in the middle.

“In mobile and in desktop we’re bringing in relationships where people provide a financial commitment, which we’re not announcing the amount, to support the evolution of OIN’s activities into these new areas,” said Bergelt.

In other words, expect a select few other companies to be invited. Perhaps as many as a half-dozen. They and the Founding Members will keep Bergelt’s 22-member staff employed.

That's one of the issues with the OIN. There is danger that it will serve its own interests rather than just eliminate some of its own software patents. LiMo has a patents pool too by the way. It's not necessarily helping in a world which is overwhelmingly against software patents. It feeds the software patents proponents. "Anti-free software lobbyists discuss patents on standards, all videos on Youtube," writes Benjamin Henrion in order to show what they are doing in Europe these days. It's quite similar to what they do in New Zealand -- a subject that we covered many times this year, even in this latest post about the sad outcome. Benjamin Henrion writes to Free software advocates in New Zealand:

Hi,

You have to be aware what is the strategy of IBM and Microsoft when they try to push for the infamous "as such" provision.

A German court has recently made Microsoft FAT patentable, despite the exclusion of computer programs "as such" from the law (the EPC).

Patent judges tends to interpret this provision as "a computer program as such is a computer program on a piece of paper" and this is what is excluded. On the other side, when the program runs on the computer, it becomes patentable.

If you are interested in clarifications to bring in New Zealand, you can take inspiration from the FFII€´s 10 core clarifications:

http://consultation.ffii.org/Clarifications

Separately, it's worth highlighting this new story about non-practicing entity (NPEs). Again, NPEs are patent trolls. "ASP (anti-patent troll company) will resell patents to trolls after 12 months," remarks on it FFII's president. Here are some quotes:

I’ve just sat through the IPBC session titled “Getting to Grips with NPEs”. Now that was a session which generated real emotion in me, and showed how amazing us humans are at spending time and effort on things that are ultimately meaningless.

I went through a large range of emotions. I started out neutral . Here we go, just another session about trolls, trolls justifying why even trolls do social good (we help small inventors make money from their IP!-well done, good for you), lawyers arguing over technicalities (rule 11, blah, blah blah), the anti-troll lobby screaming about how unfair the system is to allow this abuse and Dan McCurdy (we’ll come back to him later) giving his troll stats.

I quickly got into irritated. Mainly as the session was dominated by American accents justifying their respective positions. Mild anger soon followed. More American accents, more justification, more self-justifying arguments.

Soon followed by seething. Vigorous agreement with Nokia (great speech, really great speech Dr Schneider) and Technicolor (ex Thomson, good “I hate trolls” speech Beatrice de Russé). I found myself wanting to applaud. C’mon the anti-troll lobby!!!There was little room for middle ground in the room. And, for me, the anti-troll camp has my lifetime vote.

[...]

Dan McCurdy is a legend in the IP world. An IBMer under Marshall Phelps, a licensing expert/jobbing consultant in Thinkfire (I’m sure I recall his profile with a dollar amount against his face for his lifetime licensing dollars generated), now AST. But how can these two statements be reconciled? Statement 1, timed at about 46 minutes in “I would be delighted to close down AST tomorrow if the NPE problem went away!!” (hooray!!), and then, at around 58 minutes in “When we buy patents in for our AST members, we commit to sell them within 12 months, and we sell them to the highest bidder, we sell to operating companies, aggregators, and….to NPEs”.

Excuse me, come again….WHAT!!! You perpetuate the problem by selling on patents, to NPE’s, who can then sue those who don’t have licenses as they aren’t your members.

Notice the presence of Marshall Phelps. That's one heck of a troll (he builds or assembles patent portfolios, not products) who recently helped Microsoft fight against GNU/Linux and Free software, having previously helped IBM. ⬆